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SJC hears arguments to dismiss cases tainted by rogue chemist

By Lisa Redmond, lredmond@lowellsun.com

Updated:
11/17/2016 06:53:59 AM EST

BOSTON -- The American Civil Liberties Union of Massachusetts asked the state's highest court on Wednesday for a "global resolution" that involves the dismissal of 24,000 drug cases tainted by former state chemist Annie Dookhan.

"The commonwealth now has two of the largest drug-lab scandals the country has ever seen. This is a failure to deliver justice," ACLU attorney Matthew Segal told the state Supreme Judicial Court on Wednesday.

In 2014, former drug-lab chemist Sonja Farak pleaded guilty to stealing drugs and tampering with evidence after she admitted to using crack cocaine and other drugs while working at the state drug lab in Amherst.

The scope of the number of cases impacted has yet to be determined.

Dookhan pleaded guilty and has completed a three-year prison sentence for tampering with evidence and falsifying drug tests in criminal cases. The ACLU and defense attorneys say the chaos she created continues.

Last year, the Supreme Judicial Court rejected a blanket dismissal of cases, favoring review of individual cases. But the ACLU argued that was before the "full scope" of the number of cases -- 24,000 -- was tallied this past summer.

Justice Margot Botsford admitted that the number of cases involved is "astounding'' and a "real game-changer."

Benjamin Keehn, of the Committee for Public Counsel Services (public defenders), told justices that since 2012, CPCS has provided representation for manageable number of Dookhan defendants for four years.

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During that time, cases in which a defendant was in jail or prison were given priority and resolved, most with dismissals.

In nearly all of the 24,000 Dookhan cases, the defendant is free after serving a sentence. But Segal argued there is a fundamental issue of fairness and the "collateral damage," such as deportation, housing and custody issues from these convictions.

"This crisis didn't happen in the courts. This crisis happened in the lives of people who weren't told" their cases were tainted by Dookhan, Segal said.

Dealing with that many cases on a "case-by-case basis" as the statewide district attorneys have requested would overwhelm the Committee for Public Counsel Services (public defenders) and the Bar Advocate program, Segal told the justices.

But Susanne O'Neil, of the Norfolk District Attorney's Office, asked justices, "Do we just dismiss cases because it's hard?"

Attorneys representing the eight district attorneys offices in Massachusetts argued that after sending out a controversial letter in September to 20,916 defendants, only 779 people statewide have asked to have their cases reviewed, according to Vincent DeMore, of the Suffolk County District Attorney's Office.

Middlesex District Attorney Marian Ryan's office has received 84 calls in reference to the letter, according to spokeswoman Meghan Kelly.

But Segal suggested the letter was flawed. He argued there is "no way of knowing who received it and if they understood it."

Even if those numbers grow, DeMore said the DAs are advocating that the continuation of a system that reviews Dookhan cases is workable.

Reviewing the Dookhan cases -- after a defendant has appealed -- looks at more than whether Dookhan was the primary or secondary chemist doing the drug tests. Prosecutors, police and witnesses provide other evidence. Drug charges are often part of cases that involve firearms charges, assault and domestic violence.

The DA offices argue that a number of Dookhan defendants may not want to appeal because they want that chapter of their lives closed.

An incredulous Justice Geraldine Hines said: "In what world would a defendant convicted based on government misconduct not want to make that right?"

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